[Plaintiff, Appellant] Plaintiff (Attorneys at Law, Owol Law Firm, Kang Ho-min and 2 others, representing)
[Defendant, Appellee] Defendant Company (Attorney Lee Bong-jae, representing)
[Lower Court Judgment] Daejeon High Court Decision 2017Na12910, decided January 11, 2018
[Order]
The judgment of the court below is reversed, and the case is remanded to the Daejeon High Court.
[Reasoning] The grounds for appeal (to the extent that documents submitted after the deadline for submission of the grounds of appeal supplement the grounds of appeal) are examined.
1. Regarding the term of contract where a user company directly employs a dispatched worker
A. The former Act on the Protection, etc. of Dispatched Workers (Act No. 8076, amended December 21, 2006, before its amendment; hereinafter the "former Dispatched Workers Act") provided, in the main text of Article 6, Paragraph 3, that "where a user company continuously uses a dispatched worker for more than two years, the user company shall be deemed to have employed the dispatched worker from the day following the date on which the two-year period expires" (hereinafter the "deemed direct employment provision"), thereby providing that where a user company violates the restriction on the dispatch period, the establishment of a direct employment relationship between the user company and the dispatched worker is immediately deemed to occur.
B. The Supreme Court has held that where a direct employment relationship between a user company and a dispatched worker is established pursuant to the deemed direct employment provision of the former Dispatched Workers Act, that employment relationship should, in principle, be deemed to be without a fixed term, unless there are other special circumstances that would warrant viewing it as having a fixed term (see Supreme Court en banc Decision 2007Du22320, decided September 18, 2008).
C. Thereafter, the amended Act on the Protection, etc. of Dispatched Workers (hereinafter the "Dispatched Workers Act") replaced the deemed direct employment provision with Article 6-2, Paragraph 1, which provides, in effect, that "where a user company continuously uses a dispatched worker for more than two years, etc., the user company shall directly employ the relevant dispatched worker" (hereinafter the "direct employment obligation provision"). Under the direct employment obligation provision, unlike the former deemed direct employment provision, the mere existence of certain circumstances, such as the dispatch period exceeding two years, does not immediately result in a deemed direct employment relationship between the user company and the dispatched worker; rather, the user company bears an obligation to directly employ the dispatched worker, and the dispatched worker acquires a private-law right to seek a judgment against the user company in lieu of a declaration of intent to employ (see Supreme Court Decision 2013Da14965, decided November 26, 2015).
D. The deemed direct employment provision and the direct employment obligation provision, separately from administrative supervision or punishment for a user company's act of continuously using dispatched workers in violation of the restriction on the dispatch period, establish the legal relationship arising between the user company and the dispatched worker and the legal effects thereof in the private-law relationship between the user company and the dispatched worker as well—by deeming the establishment of a direct employment relationship or imposing a direct employment obligation on the user company—for the purpose of preventing the routine and prolonged use of worker dispatch while promoting employment stability for dispatched workers (see Supreme Court en banc Decision 2007Du22320, decided September 18, 2008; Supreme Court Decision 2013Da14965, decided November 26, 2015).
E. In light of the legislative intent and purpose of the direct employment obligation provision, in principle, absent special circumstances, a user company must, when entering into an employment contract pursuant to the direct employment obligation provision, conclude an employment contract without a fixed term. However, considering that Article 6-2, Paragraph 2 of the Dispatched Workers Act recognizes an exception to the direct employment obligation where the dispatched worker expressly indicates an intention to the contrary, a user company may conclude a fixed-term employment contract with a dispatched worker where special circumstances exist such that setting a contract term in the direct employment relationship cannot be regarded as circumventing the legislative intent and purpose of the direct employment obligation provision—for example, where the dispatched worker desired a fixed-term employment contract while knowing that he or she could demand fulfillment of the direct employment obligation against the user company, or where most of the user company's employees performing the same or similar type of work as the relevant dispatched worker are employed under fixed-term employment contracts, such that the dispatched worker could not have expected, from the outset, to conclude an employment contract without a fixed term. The burden of proving the existence of such special circumstances rests with the user company.
F. Therefore, where a user company bearing the direct employment obligation directly employs a dispatched worker but concludes a fixed-term employment contract in the absence of the aforementioned special circumstances, this cannot be regarded as a complete fulfillment of the direct employment obligation, and the portion of such employment contract setting a fixed term may be null and void as violating a mandatory provision of the Dispatched Workers Act intended to protect dispatched workers.
2. The following facts are established based on the reasoning of the judgment below and the record.
A. The Plaintiff, an employee of the non-party company, which engages in worker dispatch business, etc., was dispatched to the workplace of the Defendant, a broadcasting business operator, from July 12, 2010 to July 13, 2014, during which the Plaintiff performed broadcast operation duties.
B. On July 14, 2014, the Defendant directly concluded an employment contract with the Plaintiff, setting the term from July 14, 2014 to July 13, 2015, under which the Plaintiff was to engage in broadcast operation duties, etc. for the Defendant (hereinafter "the instant employment contract"), and renewed the instant employment contract once, with the term set from July 14, 2015 to July 13, 2016, but did not renew it thereafter (hereinafter "the instant refusal to renew").
3. Examining these facts in light of the legal principles set forth above: The Defendant used the Plaintiff as a dispatched worker for a period exceeding two years, and thus bore the obligation under the direct employment obligation provision of the Dispatched Workers Act to directly employ the Plaintiff. The Defendant should have concluded an employment contract with the Plaintiff without a fixed term, and even if a term was set in that employment contract, it may be null and void absent special circumstances. Nevertheless, the court below, without conducting any examination as to whether special circumstances existed, proceeded on the premise that the term set in the instant employment contract remained valid as is, and then determined that the instant employment contract terminated upon expiration of its term following the instant refusal to renew. Such determination by the court below contains an error of misunderstanding the legal principles concerning the direct employment obligation under the Dispatched Workers Act and failing to conduct the necessary examination. The ground of appeal pointing this out is well-founded.
4. Accordingly, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for further examination and determination, this Decision being rendered by the unanimous opinion of the participating Justices, as set forth in the Order.
Justice Oh Kyung-mi (Presiding Justice), Justice Park Jung-hwa, Justice Kim Sun-soo (Justice in Charge), Justice Noh Tae-ak